Florida's ban on gay marriage is now in the hands of the state's highest court after an appeals court asked that the justices resolve the controversial prohibition.
The request Wednesday from the 2nd District Court of Appeal for the first time puts the Florida Supreme Court in the position of deciding whether to take up the issue after five recent state and federal court decisions found that the voter-approved prohibition against same-sex marriage is unconstitutional.
The appeals court made the request in a 10-3 ruling in a case involving the divorce of Mariama Monique Changamire Shaw and Keiba Lynn Shaw, a lesbian couple married in Massachusetts in 2010. Hillsborough County Circuit Judge Laurel Lee refused to grant the couple a divorce because state law bans same-sex marriages.
The couple appealed Lee's ruling and asked the 2nd District Court of Appeal to "pass through" the case to the Supreme Court. A panel of the appellate court originally refused but, in an unusual twist, the full court revisited the case, resulting in Wednesday's ruling. It is unknown whether the Supreme Court will agree to take up the case.
The issue is whether Florida's ban on same-sex marriage and the prohibition on recognizing such marriages "unconstitutionally limits various constitutional guaranties including full faith and credit, access to courts, equal protection and the right to travel," the majority wrote in the 11-page ruling.
Because the pair could not get a divorce in the lower court, their only options would be to go to the Supreme Court or establish residency in a state that recognizes same-sex marriages, the majority wrote. A Broward County judge recently struck down the same-sex marriage ban in another divorce case but put the ruling on hold until appeals are complete in two other lawsuits. The 2nd District Court of Appeal's decision to revisit the pass-through to the Supreme Court came after the Broward ruling.
"Others similarly situated would face the same challenge of establishing residence elsewhere. Should the district courts disagree, couples in different districts will receive disparate treatment until the issue is settled by the Florida Supreme Court. In any event, because of the constitutional implications the issue will likely be addressed by the Florida Supreme Court regardless of any decision we might make," the judges wrote.
But in a dissent, Judge Chris Altenbernd, joined by two other judges, argued that the divorce case is much narrower.
"It is important to understand that the issue in this case is not whether Florida is constitutionally compelled to marry same-sex couples," Altenbernd wrote.
Instead, the case revolves around whether same-sex couples are being denied the constitutionally-guaranteed right to access the courts, Altenbernd wrote. But he rejected the majority's position that the administration of justice would be negatively impacted unless the case was rushed to the Supreme Court. Such cases should only be passed through if there is a level of statewide urgency, he wrote.
"Given that same-sex marriages are a recent development in other states, I am not convinced that Florida's courts will be clogged in the next three years with out-of-state same-sex couples seeking dissolution," Altenbernd wrote. "Although the issue on appeal is important to this couple, I am not convinced that the order on appeal represents an issue that is ripe to be treated as one of great public importance."
Lawyers for the Tampa couple had also notified Attorney General Pam Bondi, who is defending the law in other cases, about the Shaw case, but Bondi's office never responded, Altenbernd noted.
"Given that the circuit court dismissed the case without elaboration and that no one has yet appeared as a party to fulfill the function of an appellee, this issue does not seem to me to be one that this court cannot handle on appeal or that we should present to the Supreme Court as a matter ready for resolution," he wrote.
But the dissent "oversimplifies the issue in this case and underestimates its public importance and the effect that delay will have on the proper administration of justice," the majority wrote.
Bondi's office said Wednesday it is reviewing the appellate court decision. In the wake of a landmark U.S. Supreme Court decision last year, circuit judges in Monroe, Miami-Dade, Broward and Palm Beach counties and a federal judge in Tallahassee have ruled against the state's gay-marriage ban. Bondi has asked that appeals in the Miami-Dade and Monroe cases be put on hold until the U.S. Supreme Court decides on similar cases.
Gay rights advocates are hoping that the Florida Supreme Court will take up the Shaw case and send a signal to other appellate courts to also expedite their cases.
"We believe this will have a ripple effect," said Stratton Pollitzer, deputy director of Equality Florida, which is involved in several of the lawsuits.
The Supreme Court could consolidate all of the cases or separate the divorce cases from the ones in which gay couples sued clerks of court who refused to grant them marriage licenses. The Family Law Section of the Florida Bar and the American Academy of Matrimonial Lawyers filed briefs in the case "as a matter of family and matrimonial lawyers seeking finality and certainty in their area of practice"
"It seems as though there's a growing consensus that only the Supreme Court can fully resolve this issue," Pollitzer said. "Ultimately, the central question is should Florida allow same-sex couples to marry and will Florida honor our marriages performed in other states?"
Ellen Ware, a lawyer representing Mariama Shaw, called Wednesday's decision "enormously significant" and, in many ways, an "easier case" than the other right-to-marriage cases.
"It's easier because there is a crystal clear right that the parties have to access to the courts for the purpose of divorce and the state has an enormous burden to show why that should be restricted, and they're not going to be able to meet that burden," she said.
